Citation Nr: 1008570
Decision Date: 03/08/10 Archive Date: 03/17/10
DOCKET NO. 08-32 872 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the
Republic of the Philippines
THE ISSUE
Entitlement to service connection for the cause of the
Veteran's death.
ATTORNEY FOR THE BOARD
T. M. Gillett, Associate Counsel
INTRODUCTION
The Veteran served on active duty in the New Philippine
Scouts from May 1946 to March 1949. The appellant appears to
be the Veteran's surviving spouse.
This matter comes before the Board of Veterans' Appeals
(Board) from an April 2008 decision from the Department of
Veterans Affairs (VA) Regional Office (RO) in Manila,
Republic of the Philippines, which, in pertinent part, denied
the appellant's claim for entitlement to service connection
for the cause of the Veteran's death.
The appellant requested a hearing before the Board and was
scheduled for a July 2009 hearing at the RO. The record
indicates that the appellant did not appear for the scheduled
hearing. She did not present good cause for her failure to
appear, nor did she request that the hearing be rescheduled.
Therefore, the appeal will be processed as though the request
for a hearing had been withdrawn. 38 C.F.R. § 20.702(d)
(2009).
The Board notes several discrepancies involving records in
this file. For example, the Board notes that, during his
lifetime, the Veteran was known by two very dissimilar names.
According to a sworn affidavit dated June 1993, the Veteran
was noted to have been born with one name. It was explained
that, at the time of service, the Veteran used the second
name, in honor of his uncle who took care of him. After his
discharge from service and the death of his uncle, he
apparently resumed the use of the first name. Moreover, the
Veteran's death certificate lists his death as being in
January 2000. In an affidavit, however, the appellant
indicated that she was his widow, and stated that her husband
was listed in the Social Security system under the first
name. She also indicated that his date of death occurred in
January 2006. Moreover, the appellant was unable to submit a
copy of the Veteran's official birth certificate, because,
according to an affidavit submitted by the parish priest, all
the records for his parish were destroyed in a fire. Also,
throughout the record, the appellant's name is spelled in
various ways. The Board will proceed as if the appellant is
the surviving spouse of the Veteran and that the Veteran is
the same individual whose records are in the claims file.
FINDINGS OF FACT
1. The certificate of death shows that the Veteran died in
January 2000 at the age of 76; the cause of death was
recorded as cardiorespiratory arrest.
2. The preponderance of the evidence weighs against a link
between the Veteran's cardiorespiratory arrest and any
disease or injury in service.
CONCLUSION OF LAW
A service-connected disability did not cause or contribute
substantially or materially to cause the decedent's death.
38 U.S.C.A. §§ 1110, 1131, 1310, 5103, 5103A, 5107 (West 2002
& Supp. 2009); 38 C.F.R. §§ 3.102, 3.307, 3.309, 3.312
(2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. The Veterans Claims Assistance Act of 2000 (VCAA)
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA). See Pub. L.
No. 106-475, 114 Stat. 2096 (2000), codified at 38 U.S.C.A.
§§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009). The
VCAA provides, among other things, for notice and assistance
to VA claimants under certain circumstances. The VA has
issued final rules amending its adjudication regulations to
implement the provisions of the VCAA. See generally 38
C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). The
intended effect of these regulations is to establish clear
guidelines consistent with the intent of Congress regarding
the timing and the scope of assistance the VA will provide to
a claimant who files a substantially complete application for
VA benefits or who attempts to reopen a previously denied
claim.
a. Duty to Notify. The VA has a duty to notify the
appellant of any information and evidence needed to
substantiate and complete a claim. 38 U.S.C.A. §§ 5102,
5103. In order to meet the requirements of 38 U.S.C.A. §
5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must: (1)
inform the claimant about the information and evidence
necessary to substantiate the claim; (2) inform the claimant
about the information and evidence that the VA will seek to
provide; and (3) inform the claimant about the information
and evidence the claimant is expected to provide. VCAA
notice should be provided to a claimant before the initial
unfavorable agency of original jurisdiction (AOJ) decision on
a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004).
Additionally, on March 3, 2006, the United States Court of
Appeals for Veterans' Claims (Court) issued a decision in
Dingess v. Nicholson, 19 Vet. App. 473 (2006), that held that
the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and
38 C.F.R. § 3.159(b) apply to all five elements of a service
connection claim. Those five elements include: (1) the
Veteran's status; (2) the existence of a disability; (3) a
connection between the Veteran's service and the disability;
(4) the degree of disability; and (5) the effective date of
the disability. The Court held that upon receipt of an
application for a service connection claim, 38 U.S.C.A. §
5103(a) and 38 C.F.R. § 3.159(b) require the VA to review the
information and the evidence presented with the claim, and to
provide the claimant with notice of what information and
evidence not previously provided, if any, will assist in
substantiating or is necessary to substantiate the elements
of the claim as reasonably contemplated by the application.
Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). This
notice must also inform the Veteran that a disability rating
and an effective date for the award of benefits will be
assigned if service-connection is granted. Id.
The Court held in Hupp v. Nicholson, 21 Vet. App. 342 (2007)
that, when adjudicating a claim for dependency and indemnity
compensation (DIC) (to include service connection for the
cause of the Veteran's death), the VA must perform a
different analysis depending upon whether a Veteran was
service-connected for a disability during his or her
lifetime. The Court concluded that, in general, section
5103(a) notice for a DIC case must include: (1) a statement
of the conditions, if any, for which a Veteran was service-
connected at the time of his or her death; (2) an explanation
of the evidence and information required to substantiate a
claim for service connection for the cause of the Veteran's
death based on a previously service-connected condition; and
(3) an explanation of the evidence and information required
to substantiate a claim based on a condition not yet service-
connected.
The Board finds that a February 2009 VCAA letter
substantially satisfied the provisions of 38 U.S.C.A. §
5103(a) and Hupp. The appellant was informed about the
information and evidence not of record that was necessary to
substantiate the claim; the information and evidence that the
VA would seek to provide; the information and evidence the
claimant was expected to provide; and to provide any evidence
in his possession that pertained to his claim. However, this
notice was not issued to the Veteran prior to the initial
April 2008 rating decision.
In Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini
II), the Court held, in part, that a VCAA notice, as required
by 38 U.S.C. § 5103(a), must be provided to a claimant before
the initial unfavorable agency of original jurisdiction (AOJ)
decision on a claim for VA benefits. As such, the timing
error with respect to the notice requirements noted above
raises the issue of prejudicial error regarding the claim,
but such error is rebutted by the record. Subsequent to the
issuance of this notice, the RO re-adjudicated the Veteran's
claim, as demonstrated by the April 2009 Supplemental
Statement of the Case (SSOC). See Prickett v. Nicholson,
20 Vet. App. 370, 376-78 (2006) (validating the remedial
measures of issuing a fully compliant VCAA notification and
re-adjudicating the claim in the form of a statement of the
case to cure timing of notification defect).
The Board notes that the February 2009 VCAA notice did not
provide the information required by Dingess. However, the
Board finds that to there is no prejudice in issuing a final
decision at this time because the preponderance of the
evidence is against the claim for service connection.
Accordingly, any questions as to the appropriate disability
rating or effective date to be assigned are moot.
b. Duty to Assist. The Board also finds that all necessary
assistance has been provided to the appellant. The evidence
of record indicates that the VA acquired the Veteran's
service treatment records to assist the appellant with this
claim. There is no indication of any additional relevant
evidence that has not been obtained.
A VA opinion is not warranted because, as discussed below,
there is no credible evidence establishing that an event,
injury, or disease occurred in service or during an
applicable presumptive period for which the claimant
qualifies, or a credible indication that the disability or
persistent or recurrent symptoms of a disability may be
associated with the Veteran's service. See McLendon v.
Nicholson, 20 Vet. App. 79 (2006). In view of the foregoing,
the Board finds that the VA has fulfilled its duty to notify
and assist the Veteran in the claim under consideration.
Adjudication of the claim at this juncture, without directing
or accomplishing any additional notification and/or
development action, poses no risk of prejudice to the
appellant. Bernard v. Brown, 4 Vet. App. 384, 394 (1993).
II. Service Connection for Cause of Death
a. Factual Background. The appellant essentially claims
that a disorder incurred during the Veteran's service
contributed to his death. The Veteran's death certificate
indicates that he died in January 2000 from cardiorespiratory
failure. At the time of his death, the Veteran was not
service connected for any disease or disability.
In a May 1946 service treatment record, the Veteran reported
having pain in his right chest. Subsequent testing showed
pneumonia of the right lung. Service treatment records also
indicate treatment for malaria. The Veteran's March 1949
service discharge examination noted no current abnormalities,
except for a perforation of the left ear drum.
In an October 1998 VA treatment record, the examiners
diagnosed the Veteran as having pneumonia of the right hilar
area, old pulmonary tuberculosis, and arteriosclerotic heart
disease.
In a July 1999 private treatment record, the examiner noted
that the Veteran had been healthy most of his adult life. He
indicated that the Veteran had smoked until 1974, then
stopped. He diagnosed the Veteran as having small cancer of
the lung in the right lower lung area with hilar node
involvement; multiple liver metastases; and chronic
obstructive pulmonary disease.
During the Veteran's lifetime, he filed several claims for
service connection, all of which were denied. In a November
1959 Board decision, the VA denied the Veteran's claims for
entitlement to service connection for pneumonia, claimed
pulmonary tuberculosis, numbness of the left arm, headaches,
recurrent chills, fever, and defective hearing. In May 2000
and July 2002, the RO denied the Veteran's claims for
entitlement to service connection for typhoid, cholera,
smallpox, tetanus, and pulmonary tuberculosis.
After the Veteran's death, Jose Ignatius S. Quismorio, M.D.,
wrote a November 2006 opinion, indicating that the Veteran's
death should be service-connected. In reviewing the July
1999 private treatment record, Dr. Quismorio noted that the
Veteran was diagnosed as having arteriosclerotic heart
disease; and that the death certificate indicated that death
was due to cardiorespiratory arrest. He further stated that
the Veteran's arteriosclerotic heart disease may have led to
a myocardial infarction which led to cardiac arrest. Dr.
Quismorio stated that that arteriosclerosis was a disease
that would be presumed to have been incurred in service if
manifested to a compensable degree at any time after service
under 38 C.F.R. §§ 3.307 and 3.309. He concluded by stating
his belief that arteriosclerotic heart disease led to the
Veteran's death.
In a May 2008 statement, the appellant reported that the
Veteran complained of chest pains while on the front line.
She argued that this was a symptom of heart disease failure,
and therefore he died of a heart disorder incurred during
service.
b. Law and Regulations. 38 C.F.R. § 3.312 sets forth the
provisions governing benefits relating to a Veteran's cause
of death. 38 C.F.R. § 3.312. Specifically, it states that
"[t]he death of a Veteran will be considered as having been
due to a service-connected disability when the evidence
establishes that such disability was either the principal or
a contributory cause of death." 38 C.F.R. § 3.312(a);
accord Timberlake v. Gober, 14 Vet. App. 122, 127 (2000). A
service-connected disability "will be considered as the
principal (primary) cause of death when such disability,
singly or jointly with some other condition, was the
immediate or underlying cause of death or was etiologically
related thereto." 38 C.F.R. § 3.312(b). In contrast, a
contributory cause of death is a service-connected disability
that is shown to have "contributed substantially or
materially [to death]; that is combined to cause death; that
is aided or lent assistance to the production of death." 38
C.F.R. § 3.312(c)(1). Thus, "[i]t is not sufficient to show
that it causally shared in producing death, but rather it
must be shown that there was a causal connection," and a
contributory cause of death is not related to the principal
cause. 38 C.F.R. § 3.312(c)(1). Determining the Veteran's
cause of death requires the "exercise of sound judgment,
without recourse to speculation, after a careful analysis has
been made of all the facts and circumstances surrounding the
death of the Veteran, including, particularly, autopsy
reports." 38 C.F.R. § 3.312(a).
In general, service connection may be granted for disability
resulting from disease or injury incurred in or aggravated
during active military service. 38 U.S.C.A. §§ 1110, 1131.
Service connection may also be established for disease
diagnosed after discharge from service when all the evidence
establishes that the disease was incurred in service. 38
C.F.R. § 3.303(d).
Service connection may be granted for certain chronic
diseases, to include a arteriosclerosis, when they are
manifested to a compensable degree within one year of
separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113,
1137; 38 C.F.R. §§ 3.307, 3.309.
38 U.S.C.A. § 5107 sets forth the standard of proof applied
in decisions on claims for Veterans' benefits. An appellant
will receive the benefit of the doubt when an approximate
balance of positive and negative evidence exists. 38
U.S.C.A. § 5107; 38 C.F.R. § 3.102. Thus, when an appellant
seeks benefits and the evidence is in relative equipoise, the
appellant prevails. Wells v. Principi, 18 Vet. App. 33, 36
(2004); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). A
claim will be denied only if a preponderance of the evidence
is against the claim. See Alemany v. Brown, 9 Vet. App. 518,
519-20 (1996).
c. Analysis. Having reviewed the evidence of record, the
Board finds that preponderance of evidence is against the
appellant's claim of service connection for the cause of the
Veteran's death. Specifically, the evidence does not
establish that a service-connected disability was either the
principal or a contributory cause of death.
The only objective evidence submitted regarding the Veteran's
cause of death is the January 2000 death certificate,
indicating that he died of cardiorespiratory arrest. Service
connection was not in effect for any disability during the
Veteran's lifetime.
In her May 2008 statement, the appellant reported that the
Veteran experienced chest pains on the front line and that
such pains were evidence of the heart disease from which he
died. The Board notes that a May 1946 service treatment
record indicated that the Veteran experienced right chest
pain during service; however, this was diagnosed as
pneumonia. The Veteran was found to be normal upon discharge
examination in March 1949. There was no diagnosis of any
heart disorder until October 1998, nearly fifty years after
the Veteran's discharge from service. See Maxson v. Gober,
230 F.3d 1330, 1333 (Fed. Cir. 2000) (finding that the
passage of time between the Veteran's discharge and an
initial diagnosis would weigh against the claim).
In his November 2006 opinion, Dr. Quismorio stated that, in
his opinion, the Veteran died of arteriosclerotic heart
disease. Therefore, he believed that the Veteran should be
service connected because arteriosclerotic disease was a
disease that would be presumed to have been incurred in
service if manifested to a compensable degree at any time
after service under 38 C.F.R. § 3.307 and 3.309. The Board
notes that service connection may be granted for chronic
arteriosclerosis if it were to become manifest to a
compensable degree within one year of separation from service
under C.F.R. §§ 3.307, 3.309. As the objective medical
evidence does not indicate that the disorder became manifest
to such a degree within the required time frame, the disorder
cannot be presumed to be related to service. See 38 C.F.R.
§§ 3.307, 3.309.
Moreover, the Board notes that the Veteran filed several
claims for service connection, filing one such claim in June
1999, seven months after the initial diagnosis of
arteriosclerotic heart disease. As such, even with knowledge
of this disorder, the Veteran did not attempt to claim that
it was related to service.
In view of the foregoing, the Board finds that the
preponderance of the evidence is against the claim for
service connection for the cause of the Veteran's death. As
the preponderance of the evidence is against the claim, the
benefit of the doubt doctrine is not applicable and the claim
must be denied. See 38 U.S.C.A. § 5107(b); Ortiz v.
Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding
that "the benefit of the doubt rule is inapplicable when the
preponderance of the evidence is found to be against the
claimant"); Gilbert, 1 Vet. App. 49, 56 (1990).
ORDER
Entitlement to service connection for the cause of the
Veteran's death is denied.
____________________________________________
JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs